Chief Justice (ag) Roxane George has found that attorney Tamieka Clarke’s fundamental right to personal liberty was breached by the Special Organised Crime Unit (SOCU) when she was briefly arrested on October 28 last year while advising her client.
She cited Article 139 of the Constitution which deals with the protection of the right to personal liberty.
A deliberation on the quantum of damages against the police unit has been adjourned for further submissions on 19th September 2023. The attorney general was named as the respondent in the proceedings.
Justice George also ruled that the detention and seizure of Clarke’s cellular phone by officers of SOCU without her permission and without lawful excuse was wrong.
Based on the orders prayed for by Clarke, the CJ held that an attorney at law admitted to practice in Guyana is entitled to advise a client to remain silent when questioned by any lawful enforcement agency.
The judge further ruled that an attorney at law admitted to practice at the Bar in Guyana is entitled to consult with his/her client in private without the contents of the consultation being recoded in any way including by means of audio visual recording by any law enforcement agency in the Guyana or elsewhere.
As a practising attorney at law admitted to practice in Guyana, the CJ said that Clarke is entitled to advise any person who has sought her counsel to exercise the right to remain silent when questioned by a member of any law enforcement agency in Guyana.
Clarke had testified before the court that she had been practising law for over seven years and had been retained by Leon Lespoir on October 25 and accompanied him to SOCU in relation to an ongoing investigation relating to him.
She said while there they met with Constable 23975 Shaquille Duke and was joined by Superintendent Krishnadat Ramana who indicated to her that he required Lespoir to provide a statement concerning the ongoing investigation and enquired about her client’s availability to provide the said statement. She said that they agreed to return on October 27, as requested, but also informed him that her client will be exercising his constitutional right to remain silent.
“Superintendent Ramana asked me if I was aware of what ‘obstruction’ meant, and he indicated to me that Mr Lespoir was compellable to provide a statement. Superintendent Ramana further indicated to me that if I prevented Mr Lespoir from providing a statement, he would arrest me, and that ‘Counsel may need Counsel’ on the said date,” her affidavit submitted.
On October 27, Clarke along with her firm’s senior partner Shaun Allicock accompanied her client to SOCU where they were informed by Sergeant 17955 Winston Singh that Superintendent Ramana was busy and were advised to return the following day. The same team returned on October 28, where a number of events played out.
“At the said location, I was informed by Mr Lespoir and verily believe that the police had provided him with a written statement and requested for him to sign it. I repeated my advice to Mr Lespoir about his right to remain silent and I informed Constable 23975, Shaquille Duke, that Mr Lespoir declined to sign the statement.
“I entered a room and enquired from Sergeant Singh, Constable Duke and Officer Navindra Persaud whether Mr Lespoir was under arrest. I indicated to them that Mr Lespoir was desirous of leaving the premises of SOCU and returning to work. Superintendent Ramana entered the room that I was in and he instructed Officer Navindra Persaud to arrest me,” she submitted.
Middle of the room
Clarke further stated that she was instructed to follow Persaud into a room in the upper flat of SOCU’s Headquarters. She was placed to sit on a chair in the middle of the room after which Ramana entered to tell her that she was under arrest for obstruction and left. While in the room, she was in communication with Allicock via her cellphone after which it was forcibly taken away by Persaud.
At that time, she attempted to leave the room but was prevented from doing so by the two male officers who executed her arrest.
“A female rank that I had met at the gate when I entered the compound, Lance Corporal Alder, entered the room and sat in front of the desk by the door. I was wearing a Samsung Smart Watch that allows me to make and receive calls. I observed on my watch that I was receiving a call from my Attorney-at-Law, Mr C. A. Nigel Hughes, and I answered the call. I informed Mr Hughes that I had been arrested by SOCU and that I was upstairs. Officer Alder demanded that I hand over my watch and she attempted to take my watch from me,” the affidavit stated.
Clarke said that she attempted to exit the room again but was blocked by Sergeant Singh. She also requested the presence of her lawyers but no mind was paid to her.
Subsequently, attorneys Allicock, Everton Singh-Lammy and Jacy Archibald entered the room and Singh-Lammy requested Clarke’s phone from the officers who ignored him. Shortly after, Hughes attempted to enter but was prevented.
Singh-Lammy later left the room so Hughes could have access to his client.
“Mr Hughes entered the room and enquired from the Officers in the room about the charge and the particulars. Constable Duke indicated that he had to go and get instructions from his superiors. A few officers left the room and returned. One of the officers indicated that I was arrested for attempting to pervert the course of justice. Mr Hughes enquired from the rank what the particulars were, and the rank stated Mr Hughes would have to call his superior, Mr Karimbaksh, for that. Mr Hughes attempted to call Mr Karimbaksh on his cellular phone but was told that Mr Karimbaksh was busy at the time. Constable Persaud then entered the room and placed my phone on my lap. After a few minutes, I was told that I was free to go by one of the Officers,” Clarke said.
She said that the entire ordeal lasted just about an hour. Additionally, the lawyer said that she was intimidated by the presence of all male officers who were present in the room when she was arrested.
The move to arrest Clarke has sparked widespread condemnation from the local Bar Association and Regional and International Bar Associations as well.
Clarke was represented by Hughes, Ronald Daniels and Shawn Shewram.
The Director of Public Prosecutions (DPP) had recommended that no criminal charge be brought against SOCU officers over their detention of Clarke and private criminal charges against them were also thrown out.
A letter dated December 12, 2022, which was signed by DPP, Shalimar Ali-Hack was sent to Magistrate Annette Singh, discontinuing the private criminal charges. The letter was copied to Clarke.
“In exercise of the powers conferred on me by article 187 (1) (c) of the Constitution of the Republic of Guyana, I hereby discontinue the charges,” the letter stated.
The DPP also outlined the reasons why she discontinued the charges. Among the reasons provided is that the issues included in the allegations ought to be addressed through civil action.
“I have read the statement of Tamieka Clarke. It was included in the file in relation to the investigations done by the police. I also received a copy from the Attorney-at-law, Mr Nigel Hughes. I have considered it and found that the issues of Wrongful Arrest and False Imprisonment arise. These are issues of Tort and Constitutional breaches which are civil actions,” the letter states.
“The allegations made are against Superintendent Krishnadat Ramana, Sergeant #19001 Navendra Persaud and Sergeant #17599 Winston Singh, all active serving members of the Guyana Police Force for acts done in the course of their duties,” it said.
Additionally, the letter noted that the charges are in relation “to acts done in the course of their duties.” “Krishnadat Ramana, Sergeant #19001 Navendra Persaud and Sergeant #17599 Winston Singh are protected by virtue of section 1 of the Justice Protection Act Chapter 5:07,” the letter said.
“Further, they are charged under the Kidnapping Act Chapter 10:05. The intent and purpose of Parliament in the Kidnapping Act Chapter 10:05 is to provide for the punishment for the offences of abduction, wrongful restraint and confinement for ransom and other related offences and for matters incidental thereto,” it added.
The DPP said that it was her “considered” opinion that the facts alleged by Clarke “do not fall within the scope, purport and intendment of the Kidnapping Act.” Therefore, she said the charges filed under this Act are an “abuse of process.”
“In these circumstances, I have discontinued the two private criminal charges of Superintendent Krishnadat Ramana, Sergeant #19001 Navendra Persaud and Sergeant #17599 Winston Singh for the offences of Wrongful Restraint pursuant to section 6 of the Kidnapping Act, Cap 10:05 and wrongful confinement, contrary to Section 8 of the Kidnapping Act, Cap 10:05,” Ali-Hack explained in the letter.
